THE SUPREME Court has expressed concern about the cost and effect of the high number of judicial review applications to prevent trials over “missing evidence”.
It is only in exceptional circumstances trials will be halted on such grounds, Mr Justice Donal O’Donnell stressed. Given the “vastly overburdened lists” in the High and Supreme courts and the “enormous demands on the public purses”, it was desirable to consider alternatives to judicial review, the judge said.
Applications to the trial judge to halt a trial would be speedier and preferable at least in summary proceedings, he suggested. Further consideration might also be given to whether the appropriate test for prohibition of a trial was the existence, on the balance of probabilities, of a “real risk” of an unfair trial, he added in a decision Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan agreed with.
He also noted in the latest “missing evidence” case before the court, the alleged offence occurred in April 2004, but the review delayed the summary trial of this “relatively minor offence” by six years. He was giving the court’s unanimous judgment yesterday dismissing an application to stop the trial of a man on assault and public order offences arising from an alleged incident at a Centra store on Talbot Street, Dublin. It was alleged he was intoxicated and assaulted the then store manager. He denied the charges.
The CCTV system in the store did not permit the burning of a CD to copy images and only allowed for the printing out of still photos from the film. Eight photos were printed and made available to the defence, but when gardaí returned to the store to get all images at the request of the defence, they were told the footage was filmed over. In his judgment, Mr Justice O’Donnell conducted a detailed review of a series of High and Supreme court decisions on missing evidence cases.
He expressed his view that the position was reached where, except in straightforward cases such as the Braddish case where gardaí viewed CCTV footage of the incident central to the case and that footage was the basis for identification of the accused, it would require “something exceptional” to persuade a court to stop a trial.
The fact that an applicant may lose a judicial review bid to stop their trial does not detract from the power and duty of a trial court to assess the case at trial and to prohibit the trial if there was a real risk of an unfair trial, he noted.
It was “therefore entirely consistent” with the constitutional order to observe it will only be in exceptional cases the High and Supreme courts will intervene to stop a trial, particularly on grounds evidence is sought to be adduced (in the case of video stills) or is not available (in the case of CCTV evidence itself), he said.
Applying those principles to this case, the judge found it had not advanced much beyond a “no video-no prosecution” case and refused to halt it. The alleged missing evidence was not central to the prosecution case and not the basis of identification of the accused as there was direct evidence from witnesses placing him at the scene and he was arrested there by gardaí who witnessed him being abusive to the manager.
It was also “telling” the accused failed to engage with the specifics of the case against him as it was not evident how the missing evidence could assist the case he wished to make, the judge added. It was also relevant the trial judge could exclude the still photos if their production in the absence of CCTV footage would be unfair.
This was not a case of incompetence by gardaí, the judge added. Gardaí never had the entire CCTV footage, had made efforts to get it and the trial should not be prevented on grounds they should have taken some unspecified steps at an unspecified time.
